In re McBride

70 A.D.2d 595, 416 N.Y.S.2d 77

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1979
• Status: Published

Opinion

— In a proceeding pursuant to CPLR article 78 (1) petitioner seeks, before this court, to review so much of a determination of the State commissioner dated December 8, 1977 and made after a statutory fair hearing, affirming a determination of the local agency insofar as it discontinued petitioner’s assistance, and (2) the State commissioner appeals from so much of an order and judgment (one paper) of the Supreme Court, Nassau County, entered June 21, 1978, as, in transferring the proceeding to this court with respect to the denial of assistance to petitioner, directed the State and local commissioners to continue to provide assistance to petitioner’s two minor children. Petition granted to the extent that the determination is annulled insofar as reviewed, on the law, without costs or disbursements and the commissioners are directed to restore petitioner’s grant in question, retroactively to the effective date of the termination. Order and judgment affirmed insofar as appealed from, without costs or disbursements. Petitioner timely answered the local agency’s notice dated September 29, 1977 with an explanation that, on its face, was plausible. There is no evidence that the agency investigated her explanation. At the fair hearing her testimony and other evidence were not per se incredible and were not controverted nor impeached in any material respect. Further, there was no evidence that the needs of the children — who had previously qualified for Aid to Dependent Children — had diminished. Accordingly, we find that the part of the administrative determination under review is arbitrary and unsupported by substantial evidence (see Matter of McPhaul v Toia, 56 AD2d 630; Matter of Zabala v Lavine, 48 AD2d 880; Matter of Johnson v Toia, 56 AD2d 628; Matter of Conway v D’Elia, 56 AD2d 888). Hopkins, J. P., Damiani, Titone and Suozzi, JJ., concur.